Officers Authorized For the Investigation of NDPS Cases Are ‘Police Officers’, Hence, Confessional Statement Made To Them Are Not Admissible: SC in 2:1 Verdict - Synopsis
Tarandeep Singh 3 Nov 2020

The Supreme Court on October 29 held that the officers assigned under Section 53 of Narcotic

Drugs and Psychotropic Substances Act (NDPS Act) are ‘Police Officers’ and the confessional

statement made to them are not admissible under Section 25 of Evidence Act and cannot be taken

into account in order to convict the accused. Senior Advocates Anand Grover, Sushil Kumar

Jain, and S Nagamuthu appeared for the appellants before the Court and Additional Solicitor

General Aman Lekhi appeared for the Union of India.

The expressed doubt was referred by two judges Bench to higher Bench in 2013 which was

raised through the judgment held in Kanhayalal vs Union of India Appeal (crl.) 788 of 2005,

holding that officer under Section 63 is not a Police officer and thus bar cannot be attracted

under Section 24 and Section 27 of Evidence Act. The issues were:

1. Whether the officer investigating NDPS Cases qualifies as ‘Police Officer’ or not? and,

2. Whether the statement record by the investigating officer under Section 67 of the NDPS Act

can be treated as a confessional statement or not?

The majority Bench of Justice Rohinton Nariman and Justice Navin Sinha while answering the

first questions held that “Officers who are invested with powers under section 53 of the NDPS

Act are "police officers" within the meaning of section 25 of the Evidence Act, as a result of

which any confessional statement made to them would be barred under the provisions of section

25 of the Evidence Act, and cannot be taken into account in order to convict an accused under

the NDPS Act.” While Justice Indira Banerjee in her dissenting opinion said that she was unable

to persuade herself to agree that the investigating officers will be considered as Police officers

within the meaning of Section 25 of the Indian Evidence Act, 1872 and the confessional

statement made to them would be barred.

The Court stated that a statement under Section 67 of the NDPS Act cannot be compared

to Section 163(1) of the Code of Criminal Procedure (CrPC). Also, that the safeguards which

followed under section 163(1) of CrPC are not required to be followed under the NDPS Act.

Justice Banerjee also noted that the right to a fair trial by an impartial Court and/or a Tribunal is

a human right under the UDHR and an essential element of the fundamental right, at the same

time the fairness of trial has to be seen not only from the point of view of the accused but also

from the point of view of the victim and the society.

In view of the above facts, the judgment in Noor Aga and Nirmal Singh Pehlwan v.

Inspector was held to be correct than the judgments held in Kanhaiyalal and Raj Kumar


However, the Court has sent back the Appeals and Special Leave Petition to the Division Bench

to be disposed of on the merits.


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